Mutual Reliance Review System for Exemptive Relief Applications - Collateral Benefits- Take-over bid for independent consolidator of insurance brokerages - Offeror enteringinto lock-up agreement with insurance company shareholder holding 16% of targetissuer - Agreement provides that insurance company shareholder will tender targetshares to the bid, if made, and that bidder will cause target company to maintain grosswritten premiums with insurance company shareholder - Bidder and target companydesirous of continuing business with insurance company shareholder in order tomaintain independent brokerage status - Lock-up agreement entered into for businesspurposes relating to the terms upon which the bidder was prepared to acquire all of thetarget shares - Lock-up agreement may be entered into despite prohibition of collateralbenefits agreements in Legislation.
Applicable Ontario Statutes
Securities Act, R.S.O. 1990, c.S.5, as amended, ss. 97(2), 104(2)(a).
LEGISLATION OF ONTARIO, ALBERTA AND QUÉBEC
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
866295 ALBERTA LTD. AND CANADA BROKERLINK INC.
MRRS DECISION DOCUMENT
WHEREAS the Canadian securities regulatory authority or regulator (the "DecisionMaker") in each of Ontario, Alberta and Québec (collectively, the "Jurisdictions") hasreceived an application from 866295 Alberta Ltd. ("Bidco") for a decision pursuant to thesecurities legislation of the Jurisdictions (the "Legislation") that:
(i) a lock-up agreement (the "Lock-Up Agreement") between Bidco and The Dominionof Canada General Insurance Company ("Dominion") dated February 20, 2000,pursuant to which Dominion agreed to tender its shares to a take-over bid (the"Bid") made on February 28, 2000 by Bidco for all of the common shares (the"Common Shares"), whether issued or issuable in connection with certain optionsor rights, of Canada Brokerlink Inc. ("CBL"), is being made for reasons other thanto increase the value of the consideration paid to Dominion for the Common Sharesthat it holds; and
(ii) the Lock-Up Agreement may be entered into despite the prohibition in theLegislation that prohibits an offeror who makes or intends to make a take-over bidor issuer bid and any person or company acting jointly or in concert with the offerorfrom entering into any collateral agreement, commitment or understanding with anyholder or beneficial owner of securities of the offeree issuer that has the effect ofproviding to the holder or owner a consideration of greater value than that offeredto other holders of the same class of securities (the "Collateral AgreementProhibition");
AND WHEREAS pursuant to the Mutual Reliance Review Systems for ExemptiveRelief Applications (the "System") the Ontario Securities Commission is the principalregulator for this application;
AND WHEREAS Bidco has represented to the Decision Makers that:
1. Bidco, a corporation incorporated under the laws of Alberta, is not a reporting issuerunder the Act or any other legislation. Bidco has been newly incorporated, as ofFebruary 11, 2000, in order to make the Bid. The head office of Bidco is locatedin the province of Ontario.
2. Dominion, a corporation continued under the Insurance Companies Act (Canada)is not, to the best of the knowledge of Bidco, a reporting issuer under the Act or anyother legislation.
3. The predecessor of CBL was incorporated under the laws of Alberta on May 27,1991. CBL was amalgamated under the laws of Alberta on January 28, 1997. Theregistered office of CBL is located at 1600, 407 2nd Street S.W., Calgary, Alberta,T2P 2H3.
4. CBL is a publicly traded consolidator of independent property and casualtyinsurance brokerages and an operator of insurance brokerage firms through whicha variety of insurance products are distributed. CBL acquires brokerage operationsin various locations and ties them together with a proprietary network. CBL alsoprovides operational services to independent insurance brokerages. The CommonShares are listed on The Toronto Stock Exchange (the "TSE") and traded under thesymbol "CKK".
5. The authorized capital of CBL consists of an unlimited number of Common Sharesand preferred shares, of which there were issued and outstanding as of February25, 2000, 35,464,290 Common Shares and options to purchase up to a maximumof 2,827,412 Common Shares.
6. Dominion is the registered and beneficial owner of 5,634,045 Common Shares,representing approximately 16% of the issued and outstanding Common Shares,on an undiluted basis.
7. The Bid was made for all of the Common Shares, whether issued pursuant to theexercise of options or otherwise, pursuant to an offer and take-over bid circular (the"Bid Circular") filed in Ontario, Québec, Alberta and Nova Scotia.
8. Bidco, in connection with the Bid, is being financed by Allianz of Canada, Inc., acompany existing under the laws of the Province of Ontario ("Allianz Canada").Allianz Canada holds all of the equity shares of Bidco and is a holding companythat provides certain management and insurance-related services to certaininsurance-related entities.
9. Allianz Canada is controlled, directly or indirectly, by Allianz Aktiengesellschaft("Allianz AG"), a company which heads up one of the leading internationalinsurance groups in Europe (the "Allianz Group"). The Allianz Group underwritesall major personal and commercial/industrial lines and offers a broad range of non-life and life coverage. Allianz AG also acts as a reinsurer, mainly for the AllianzGroup. The shares of Allianz AG are traded on all German and Swiss stockexchanges as well as the London Stock Exchange.
10. The shares of Allianz Canada are 60% held by Allianz AG and 40% held by Allianzof America, Inc., a United States holding company which, in turn, is 90% owned byAllianz AG.
11. Allianz Canada wholly-owns certain insurance companies, including AllianzInsurance Company of Canada and Trafalgar Insurance Company of Canada, andowns an interest in a brokerage located in Alberta, being Oxford Insurance Ltd. (anAlberta licensed intermediary) which, in turn, owns an interest in Manley InsuranceBrokers Inc., an Ontario licensed brokerage.
12. On January 17, 2000, the Board of Directors of CBL announced that they hadobtained a copy of a press release made by Equisure Financial Network Inc.("Equisure") in which Equisure announced its intention to make an offer to acquireall outstanding Common Shares for a cash purchase price of $1.02 per share.Equisure's press release also announced that Equisure intended to take up and payfor all shares deposited in acceptance of such offer prior to a previously announcedspecial meeting on February 22, 2000. That special meeting was called to providefor shareholder approval of a business combination with Vector Intermediaries Inc.("Vector") and was subsequently adjourned to March 24, 2000.
13. On January 14, 2000, after being approached by Equisure representatives, but priorto the above press release, CBL announced that its Board of Directors hadapproved the adoption of a shareholder rights plan that requires, among otherthings, that any take-over bid for CBL be open for acceptance for at least 45 days.Unless waived by the Board of Directors of CBL, that plan would, in the case of anunsolicited bid which did not comply with the terms of such plan, result insubstantial dilution to a hostile bidder. The Support Agreement (described anddefined below) provides that the Board of Directors of CBL will waive the plan inconnection with the Bid and such waiver took place effective 9:00 a.m. (Calgarytime) on February 21, 2000.
14. On January 17, 2000, CBL announced that it had constituted a Special Committeeof its Board of Directors to consider and advise the full Board of Directors onEquisure's offer and any other offers that may come from other interested parties.The special committee engaged Newcrest Capital Inc. ("Newcrest") to providefinancial advice. Pursuant to a directors' circular dated January 28, 2000, theBoard of Directors of CBL recommended that shareholders reject the offer made byEquisure.
15. Bidco understands that, pursuant to the auction process conducted by the SpecialCommittee, a number of potential offerors for CBL approached Newcrest andsigned confidentiality agreements with Newcrest pursuant to which such partiesagreed that they would be granted access to data involving CBL. During thatprocess, on January 28, 2000, Equisure announced that it had applied to theOntario and the Alberta Securities Commissions for an order that would have hadthe effect of setting aside the shareholder rights plan established by CBL.Subsequently, on February 4, 2000, Equisure reached an agreement with CBLpursuant to which Equisure agreed to extend the expiry date of its offer fromFebruary 10, 2000 to 12:01 a.m. (local time) on February 24, 2000. In exchange,CBL agreed to take all actions necessary to adjourn to a date not later thanFebruary 25, 2000 its previously announced shareholders meeting called toconsider the approval of the amalgamation with Vector and the shareholder rightsplan. Further, CBL also agreed to take all corporate actions necessary to ensurethat Equisure would be entitled to vote all shares it acquires under Equisure's offerat the relevant meeting. CBL also agreed that Equisure would be granted accessto the data room of CBL.
16. It was in connection with this auction process that Allianz Canada approachedNewcrest with a view to discussing a possible investment by Allianz Canada inCommon Shares. On January 28, 2000, Allianz Canada entered into aconfidentiality agreement with CBL pursuant to which it agreed to keep confidentialall information relating to its review of the due diligence records to be provided byCBL. On February 4, 2000, Allianz Canada and CBL executed a non-bindingindication of interest. Representatives of Allianz Canada attended roomscontaining certain due diligence materials on February 4, 8 and 9, 2000 to reviewthe relevant materials. Thereafter, negotiations took place between representativesof Bidco, Allianz Canada and CBL culminating in the execution of the SupportAgreement (the "Support Agreement") between Bidco and CBL on February 20,2000.
18. Pursuant to the Support Agreement, Bidco agreed to make the Bid and CBL agreedto recommend that shareholders accept the Bid. CBL has agreed to pay a breakfee in the amount of $850,000 to Bidco in the event that certain events occur.
19. Representatives of Bidco and Allianz Canada also obtained a waiver of the non-disclosure provisions of the CBL confidentiality agreement on or about February 8,2000 and then entered into discussions at the same time with representatives ofDominion. Subsequent to those discussions, Bidco, Allianz Canada and Dominiondiscussed the proposed arrangement and negotiations terminated and then re-commenced on or about February 19, 2000, culminating in the execution anddelivery of the Lock-Up Agreement on February 20, 2000.
20. Pursuant to the Lock-Up Agreement, Bidco agreed to make the Bid and Dominionagreed to tender to the Bid all of the Common Shares held by it at the date of theLock-Up Agreement and any Common Shares which Dominion or any of its affiliatesacquire prior to the expiry of the Bid and not to withdraw them.
21. In the event that Bidco takes up and pays for Common Shares and acquires as aresult 50.1% or more of the outstanding Common Shares, it has agreed to causeCBL to conduct its business and affairs with Dominion in good faith and inaccordance with processes and practices which are currently in force betweenDominion and CBL as at the date of the Lock-Up Agreement including, withoutlimiting the generality of the foregoing, base commission rates, contingent profitcommission programs and the terms of existing broker agreements betweenDominion and CBL and between Dominion and CBL's subsidiaries, unless CBL andDominion otherwise agree.
22. In addition, Bidco has agreed to cause CBL to maintain Dominion's gross writtenpremiums ("Volume") at not less than $33,000,000 for each calendar year (the"Volume Commitment") unless Dominion is unable or unwilling to underwrite thetype of business of CBL that Dominion is currently underwriting due to, among otherthings, significant pricing variances of Dominion's products from the market, failureto maintain Dominion's existing service standards or material change in productcharacteristics offered by Dominion, in which case the Volume Commitment will bereduced by the Volume affected by such factors. If there is a shortfall in Volumeplaced with Dominion of more than 5% of the Volume Commitment in respect of anycalendar year, CBL will pay to Dominion an amount equal to 9% of the shortfall ofthe Volume placed with Dominion for such year within 30 days of the end of suchyear.
23. Dominion has also agreed to take all necessary action in order to continue itsexisting debt financing to CBL of approximately $2,100,000 on the same terms asare currently in force, including, without limiting the generality of the foregoing,interest rate, maturity, payment terms and first priority security. In addition, if theVolume in any calendar year at the end of which any portion of such debt remainsoutstanding is less than $15,000,000, all amounts outstanding under such debtfinancing shall be directly due and payable.
24. Bidco has also agreed to cause CBL to continue to carry on CBL's insurancebrokerage business substantially in accordance with normal industry practices andat a level at least sufficient to generate business which would allow CBL to meet itsVolume Commitment.
25. Dominion has agreed not to make a competing offer for the Common Shares or todirectly or indirectly solicit or encourage any enquiries, discussions, negotiationsor proposals relating to any competing offer. Dominion may, however, entertain,negotiate and enter into agreements, arrangements or understandings relating tounsolicited proposals regarding a competing offer for its Common Shares.
26. In the event that any person or group of persons makes or publicly announces theintention to make, a competing offer or other business combination transaction forthe Common Shares which offers, in Dominion's sole discretion, greaterconsideration per Common Share than the consideration offered under the Bid,Dominion shall be relieved of its obligations under the Lock-Up Agreement.
27. The obligations of Bidco and Dominion under the Lock-Up Agreement are subjectto the receipt of all necessary regulatory approvals, including this MRRS DecisionDocument. Further, the foregoing commitments will, unless extended by theparties, terminate on the date which is 3 years from the date that Bidco first takesup and pays for Common Shares under the Bid.
28. Allianz Canada and Bidco consider the Lock-Up Agreement, particularly as itrelates to the Volume Commitment, to be desirable in order to preserve the existingbusiness relationship between CBL and Dominion. As a result of the involvementof Allianz Canada in Bidco, and due to certain independence requirements and therequirement to have available a number of insurers in respect of insurancebrokerage operations, CBL will require the Dominion book of business and themarket that Dominion represents in order to provide quotations to its clients.Accordingly, Bidco and Dominion have entered into the Lock-Up Agreement forbusiness purposes unrelated to Dominion's ownership of Common Shares.
29. Three independent insurance brokers have provided opinions to the Jurisdictionsthat the terms of the Lock-Up Agreement that relate to the Volume Commitment arecommercially reasonable in the industry.
AND WHEREAS pursuant to the System this MRRS Decision Document evidencesthe decision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test contained inthe Legislation that provides the Decision Maker with the jurisdiction to make the Decisionhas been met;
THE DECISION of the Decision Makers pursuant to the Legislation is that, for thepurposes of the Legislation, the Lock-Up Agreement has been made for purposes otherthan to increase the value of the consideration to Dominion for its Common Shares andthat such agreement may be entered into notwithstanding the Legislation.
March 17th, 2000.
"J. A. Geller" "R. Stephen Paddon"